2015-02 (Emergency Staff Opinion issued January 14, 2015)
Appearance of Impropriety; Impartiality; Political Activity; Speaking
Rules 1.2, 3.1, 3.7 & 4.1
Issue:May a Judicial Official speak at a dinner in honor of a recently retired politician?
Additional Facts: The proceeds from the dinner will be given to an educational institution. According to the invitation, the dinner is being co-sponsored by the honoree’s political party and the honoree’s family.
Applicable Rules:Rule 1.2 states that a judge “should act at all times in a manner that promotes public confidence in the … impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”
Rule 3.1 states that a judge may engage in extrajudicial activities, except as prohibited by law, however, a judge shall not participate in activities that (1) will interfere with the proper performance of judicial duties, (2) lead to frequent disqualification, (3) appear to a reasonable person to undermine the judge’s independence, integrity or impartiality, (4) appear to a reasonable person to be coercive, or (5) make use of court premises, staff or resources except for incidental use or for activities that concern the law, the legal system or the administration of justice, or the use is permitted by law.
Rule 3.7 states that a Judicial Official may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities: … “(4) appearing or speaking at …and permitting his or her title to be used in connection with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice.” Comment (3) to said Rule states that mere attendance at an event, “whether or not the event serves a fund-raising purpose, does not constitute a violation of subsection (a) (4).”
Rule 4.1(a) states, in relevant part, as follows:
Except as permitted by law, or by Rules 4.2 and 4.3, a judge shall not:
(5)attend or purchase tickets for dinners or other events sponsored by a political organization or a candidate for public office …
The Commentary to Rule 4.1 states, in relevant part, as follows:
(2)Public confidence in the independence and impartiality of the judiciary is eroded if judges are perceived to be subject to political influence. Although judges may register to vote as members of a political party, they are prohibited by subsection (a) (1) from assuming leadership roles in political organizations.
Discussion:This inquiry was circulated to the Committee members and their input solicited.
In JE 2012-21, at issue was whether a Judicial Official and his or her spouse could attend a small gathering at the home of a relative so that a retiring political official could thank the hosts and guests (other than the Judicial Official) for their prior support. No fee was charged and no fundraising took place. The political official did not have and was not likely to be engaged in any proceedings that ordinarily would come before the Judicial Official, the court of which the Judicial Official was a member or any court subject to the appellate jurisdiction, if any, of the court on which the Judicial Official served. This Committee determined that Rule 4.1 prescribed guidelines limiting the involvement of judges with political activities. The Committee unanimously determined that attendance at the event would not violate Rule 4.1 because the event was sponsored by a family member and not by “a political organization or candidate for public office” (Rule 4.1(a) (5)), the event was not a fund raiser (Rule 4.1(a) (4)), and the event did not involve a public official who was running for office or who had any matters before or likely to come before the inquiring Judicial Official.
Based upon the fact that the dinner is co-sponsored by a political party, the Judicial Official is prohibited by Rule 4.1(a) (5) from attending or purchasing a ticket to the dinner and a fortiori cannot be a speaker at the dinner. Furthermore, this is not an event that concerns the law, the legal system or the administration of justice and therefore, consistent with Rule 3.7(a) (4), the Judicial Official could not speak at the dinner even if the dinner was not sponsored (or in this case co-sponsored) by a political organization, albeit in that instance the Judicial Official would be permitted to attend the dinner. See Rule 3.7, Comment (3).